Commissioner of Central Excise & Customs, Pune-I vs Formica India Division>2000(12)LCX0155

2000(12)LCX0155

IN THE CEGAT, WEST ZONAL BENCH, MUMBAI

S/Shri Gowri Shankar, Member (T) and J.N. Srinivasa Murthy, Member (J)

COMMISSIONER OF C. EX. & CUS., PUNE-I

Versus

FORMICA INDIA DIVISION

Order Nos. 4410-11/2000-WZB/C-I, dated 21-12-2000 in Appeal Nos. E/4511 & 4633/95-SB

Advocated By : Shri Karnail Singh, SDR, for the Appellant.

Shri Naresh Thacker, Advocate, for the Respondent.

[Order per : Gowri Shankar, Member (T)]. - The question for consideration in these appeals is the classification of glossy aluminium sheets laminated with a combination of kraft paper and resin. The process of manufacture explained in the undated note of O.P. Chabra, Manager of the respondent, indicates that the kraft paper is impregnated with a solution of resin. An aluminium sheet placed upon layers of such paper, and the whole is subjected to pressure and heat, as a result of which the different materials bond together.

2. The manufacturer had classified this product under Heading 7606.10 of the tariff. This heading at the relevant time was for aluminium plates, sheets (including circles) and strips of a thickness exceeding 0.2 mm. The Department took the view that the goods were rightly classifiable under Chapter 39, as a manufacture of plastic, for the reason that Heading 70.06 was specific for aluminium sheets backed with any other material and it did not take into its scope aluminium laminated with other material. These goods have a character and use distinct from aluminium sheets. The Assistant Collector confirmed the classification proposed in the notice.

3. The manufacturer appealed this order. The Collector (Appeals) took note of the provisions of note I(d) to Chapter 76, that products classifiable under Heading 76.06 continue to remain in it even if they are perforated, corrugated, polished or coated, proved that they had not assumed the character of articles of product of any other heading. He therefore confirmed the classification claimed by the appellant. This is challenged in the Department’s appeal.

4. The grounds in the appeal are these. The goods derive their essential character from the plastic. They are not put to the same use that it is the plastic, which gives the product its necessary strength and rigidity. They are not put to the same use that aluminium sheets are put to. The departmental representative emphasises this point.

5. The product is stated to be used as a decorative facade on interior surfaces of buildings and structures, for which the exterior surface of the aluminium sheets is made use of. Counsel for the respondent explains that the product is stuck on such interior surfaces. The literature of the product shows such use in offices, shops and other such establishments. Samples of the product shown to us, and its description in the literature indicates the different colours and patterns in which it is available The product literature shows that it can be cleaned by simple soap solution and is not affected by foods, beverages and household chemicals. It is thus clear that the use of the product involves exploitation of the properties that the aluminium provides.

6. At the same time is accepted by the counsel for the respondent that the aluminium sheet of 0.39 mm which forms part of the product cannot itself be used for the purpose for which the laminate is used. This is for two reasons. Firstly it is wrinkled. Secondly it is difficult to stick such aluminium sheets to the wall or other surface to which they are to be applied. These are the reasons necessitating their lamination. With the paper and plastic. It is also to be noted that the resin and paper combination also provides a degree of hardness and rigidity to the aluminium facilitating its use.

7. The Explanatory Notes to Chapter 39 and of the 76 contained in the Harmonized System of Nomenclature do not afford us any guidance in the classification. The departmental representative relies upon note 1(d) to Chapter 39. The explanatory notes of Chapter explaining the classification of “Combinations of plastic materials with other materials other specifies the products which are covered by the chapter, provided that they retain the essential character of articles of plastic. Note (a) refers to plates, sheets of plastics incorporating reinforcement or a supporting mesh of another material embedded in the body of the plastic. Note (b) refers to the following : “Products consisting of plastics plates, sheets, etc., separated by a layer of another material such as metal foil, paperboard, etc.”

8. Neither of these notes, it is evident, deals with a combination of plastic and metal. We are unable to accept the departmental representative’s contention that these notes are only illustrative. The notes are very specific about the combination of materials which are classifiable under Chapter 39, and do not lay down general guidelines. We are therefore compelled to turn to the general interpretative rules. Note 3(b) provides for classification of a commodity according to the material that gives it its essential characteristics. Now it is clear that the essential characteristics of the material under consideration are not solely provided by aluminium, paper or plastic. The plastic without the aluminium will be of no use at all for the use that the product is put to. The aluminium also cannot be put to the intended use without the plastic and paper lamination. It appears to us that all three materials both contribute in equal measure. We are therefore compelled to fall back upon note 3(c), providing for classification of heading for the latter on equally applicable headings. This is Heading 76.07.

9. The appeals are dismissed.

Equivalent 2001 (133) ELT 0743 (Tri. - Mumbai)